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In order to be considered legally effective, consent to medical treatment must meet three tests: (1) it must be voluntary; (2) it must be adequately informed or knowing; and (3) it is given by an individual with adequate mental capacity and legal authority.

Whereas a variety of state laws in the United States pertain to decisional capacity and surrogate decision making, in most cases the physician relies on family members as the surrogate decision makers for an incapacitated patient, even in the absence of a specific statute, advance directive, or court order empowering the family.

An increasing percentage of patients, especially as the population ages, lack available, willing relatives or friends to act as surrogate decision makers. In such cases physicians should seek guidance from living wills or other forms of advance directives, when these exist.

Neither a patient nor his or her family has a legal right to, nor does the physician have the obligation to provide, medical treatment that would be futile—that is, nonbeneficial—for that patient.

As directors of critical care units, critical care physicians should participate in creating institutional protocols that delineate operational principles of the critical care team and the individual physician's supervisory responsibilities.

The making, implementation, and documentation of treatment decisions in the practice of critical care medicine raise a host of potential legal implications. This chapter briefly outlines some of the more salient issues and suggests avenues for their management and further exploration. Figure 5-1 depicts these issues as they arise within and impact upon the physician–patient relationship in ICUs.

It must be noted that what is described here are the evolving legal ramifications particular to critical care practice in the United States. For comparison, in critical care as practiced outside the United States, legal issues may impact much less on day-to-day decision making. It may be argued that the U.S. approach encourages greater sensitivity to and protection of the rights of patients. In contrast, the legal systems of many other countries, explicitly or by default, have elevated the role of the critical care physician as unquestioned advocate for the critically ill patient. A tangible outcome of this difference is that intensivists in the United States usually are more cautious in giving medical advice—especially advice with difficult ethical connotations—to their patients or surrogates compared to Australasian, European, or even Canadian intensivists, all of whom assume a more commanding presence at the physician–patient interface regarding critical care decision making. It is not uncommon to encounter U.S. critical care decision making suspended, awaiting the input of family or an institutional ethics committee that has yet to be apprised of the patient's condition or need for a decision; in ...